Martin v. Payne , 9 Johns. 387 ( 1812 )

Spencer, J. delivered the opinion of the court.

The case of Dean v. Peel (5 East, 49.) is against the action. It was there held that the daughter being in the service of another, and having no animus revertendi, the relationship of master and servant did not exist. In the present case, the father had made no contract hiring out his daughter, and the relation of master and servant did exist, from the legal control he had over her services; and although she had no intention of returning, that did not terminate the relation, because her volition could not affect his rights. That is the only case which has ever denied the right of the father to maintain an action for debauching his daughter whilst under age; and I consider it as a departure from all former decisions on this subject. It has frequently been decided, that where the daughter was more than twenty-one years of age there must exist some kind of service; but the slightest acts have been held to eonstitute the relation of master and servant, in such a case. In Bennet v. Alcolt, (2 Term Rep. 166,) the daughter was thirty years of age, and Fuller, Justice, held that even milking cows was sufficient. But where the daughter was over twenty-one, and in the service of another, as in Postleithwaite v. Parks, (3 Burr. 1878.) the action is not maintainable. In Johnson v. M‘Adam, cited by Topping, in Dean v. Peel, Wilson, J. said that where the daughter was under age he believed the action was maintainable, though she was not part of the father’s family when she was seduced, but when she was of age, and no part of the father’s family, he thought the action not maintainable. In Fores v. Wilson, (Peake’s N. P. Cas. 55.) which was an action for assaulting the maid of the plaintiff, and debauching her, per quod, &c. Lord Kenyon held that there must subsist some relation of master and servant, yet a very slight relation was sufficient, as it had been determined that when daughters of the highest and most opulent families have been seduced, the parent may maintain an action on the supposed relation of master and servant, though every one must know that such a child cannot be treated as a menial servant.

Put the case of a gentleman’s daughter at a boarding school, debauched and gotten with child, on what principle can the father maintain the ácfcion, but on the supposed relation of master and servant, arising from the power possessed by the father to require menial services; for in such a case, there is no actual existing ser-, vice constituting the relation of master and servant. Would it not be monstrous to contend that, for such an injury, the law afforded no redress ? The case supposed is perfectly analogous to the One before us: here the father merely permitted his daughter to remain with her aunt; he had not devested himself of his power to reclaim her services, nor of his liability, to maintain and provide for her. She was his servant de jure, though not defacto, at the time of the injury, and being his servant de jure, the defendant has done an act which has deprived the father, of his daughter’s services, and which he might have exacted but for that injury. We are of opinion that the action is maintainable under the circumstances of this case, and, therefore, deny trial. the motion for a new

Motion denied.^(a)

(a) See Christian’s observation on this kind of action, 3 Bl. Com. l42. note (13). Selwyn’s N. P. 966. 979. Peake’s N. P. Cas. 55. 233. 2 Term Rep. 4. 5 Bos. & Pull. 476. 2 Caines' Rep. 219. 3 Wils.. 18. 3 Esp. Cas. 119. 1 Johns. Rep. 297.